ABBEY PARK HOMEOWNERS ASSOCIATION, APPELLANT,
v.
DEBORAH BOWEN, APPELLEE

Fla. 4th DCA | 1987-06-17
No. 4-86-0039
HERSEY, C.J., and GLICKSTEIN, J., concur.
508 So. 2d 554 Florida District Court of Appeal, Fourth District (1987) Caution
Cited by 22 cases

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Synopsis

Abbey Park Homeowners Association appealed a judgment awarding a mandatory permanent injunction to Deborah Bowen, who had failed to pay monthly homeowners assessments. The court reversed, holding that the affirmative defense of failure to maintain common elements is inadequate as a matter of law, and that the perpetual injunction was unenforceable and improper.


Holding

The affirmative defense of failure to maintain common elements is inadequate as a matter of law and cannot defeat an assessment foreclosure. A mandatory perpetual injunction without stated time limits is unenforceable and constitutes an abuse of the trial court's equity powers, particularly where the party lacks ability to comply.


Headnotes

[1] A homeowner's failure to pay assessments is not excused by the homeowners association's alleged failure to maintain common elements.

[2] A perpetual injunction is unenforceable and constitutes an abuse of a trial court's equity powers.

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Key Quotes

“the affirmative defense of failure to maintain the common elements is inadequate as a matter of law”

Establishes the core holding that this defense cannot defeat assessment obligations

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Facts & Procedural History

Bowen failed to pay monthly assessments owed to Abbey Park, accumulating $1,977.60 in unpaid assessments plus interest by trial. Abbey Park filed a fo…

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Opinion of the Court
WALDEN, Judge.

WALDEN, Judge.

Abbey Park Homeowners Association, Inc., (Abbey Park), appeals an adverse final judgment and mandatory permanent injunction in favor of Deborah Bowen, appel-lee. We reverse and remand.

Bowen failed to pay her monthly assessments of the common expenses, which resulted in Abbey Park filing an action to foreclose a claim of lien against Bowen. At the time of trial, Bowen owed $1,977.60 in unpaid assessments plus interest. Bowen filed an answer, affirmative defense and counterclaim. The affirmative defense asserted that Bowen was not liable for the assessments because Abbey Park failed to maintain the common elements pursuant to the Declaration of Covenants, Conditions and Restrictions. The counterclaim sought a mandatory permanent injunction to compel Abbey Park to maintain the common elements and damages for Abbey Park’s alleged breach of the declaration.

Abbey Park filed a motion to dismiss the counterclaim and a motion to strike the affirmative defense. The court denied the motion to dismiss and granted the motion to strike the affirmative defense. At trial, however, the court allowed Bowen to present evidence as to her previously striken affirmative defense.

The jury found that Abbey Park and not Bowen breached the declaration by failing to maintain the common elements. The trial court entered final judgment denying Abbey Park’s claim for foreclosure and granting a mandatory permanent injunction ordering Abbey Park to maintain the common elements.

Four issues are raised on appeal. Three of the four issues raised concern the admissibility and applicability of the affirmative defense asserted by Bowen. The fourth issue raised is whether the trial court erred in granting a mandatory permanent injunction.

In the instant case, it is not disputed that Bowen has not paid assessment fees since July 1983, and at the time of trial, she owed $1,977.60 plus interest. Bowen’s duty to pay the assessment fees was conditioned solely on her acquisition of title as stated in the declaration. Her only defense asserted at trial was Abbey Park’s failure to maintain the common elements. However, the affirmative defense of failure to maintain the common elements is inadequate as a matter of law. Sandles v. Sheridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4th DCA 1980). As this defense is inadequate as a matter of law, the trial court erred in entering final judgment in favor of Bowen as to the foreclosure suit. Therefore, we reverse and remand for entry of a final judgment for Abbey Park on its foreclosure claim.

We also reverse and remand for entry of a final judgment for Abbey Park on the mandatory permanent injunction.1 Injunc-tive relief is an appropriate remedy for the enforcement of regulations contained in a declaration of condominium. Del Valle v. Biltmore II Condominium Association, Inc., 411 So. 2d 1356 (Fla. 3d DCA 1982). However, in this case, the injunction ordered is improper. A perpetual injunction is unenforceable and a trial court abuses its equity powers if it attempts to impose such a sanction. Florida Jai Alai, Inc. v. Southern Catering Services, Inc., 388 So. 2d 1076 (Fla. 5th DCA 1980); and U Shop Rite, Inc. v. Richard’s Paint Mfg. Co., Inc., 369 So. 2d 1033 (Fla. 4th DCA 1979). In the instant case, the mandatory injunction orders Abbey Park to maintain the common elements and enjoins it from allowing the common elements to fall into disrepair. However, the injunction is perpetual; it does not state any time limits to be imposed. As such, it is unenforceable and must be reversed. Moreover, Abbey Park does not have the ability to comply with the injunction, and therefore, the injunction is improper. Accordingly, we reverse and remand for entry of a final judgment for Abbey Park on its foreclosure claim and on the mandatory permanent injunction.

REVERSED AND REMANDED.

HERSEY, C.J., and GLICKSTEIN, J., concur. . In her counterclaim, Bowen sought a mandatory permanent injunction and damages for Abbey Park's alleged breach of the declaration. However, Bowen apparently abandoned this claim, as she did not introduce any evidence at trial to support her damage claim, and therefore, this claim has been lost.


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Citator

Cited By (11 total)

  • Amelio v. Marilyn Pines Unit II Condo. Ass'n, Inc., 173 So. 3d 1037 (Fla. 2d DCA 2015)
    …ally authorized by statute in cases brought by unit owners against condominium associations for their failure to perform obligations as required by the condominium documents. § 718.303(1), Fla. Stat. (2011); see Abbey Park Homeowners Ass’n v. Bowen, 508 So. 2d 554, 555 (Fla. 4th DCA 1987). In order to establish entitlement to a mandatory injunction there must be a clear legal right which has been violated, irreparable harm must be threatened, and there must be a lack of an adequate remedy at law. Shaw v. Tamp…
    1 / 2
  • Indian Trail Homeowners Ass'n, Inc. v. Leta Roberts, 577 So. 2d 998 (Fla. 4th DCA 1991)
    …le through a judgment of the court and the attempt to impose such a sanction is an abuse by the trial court of its equity powers.” Id. at 1033. We erroneously cited U Shop Rite, a prohibitory injunction case, in Abbey Park Homeowners Ass’n v. Bowen, 508 So. 2d 554 (Fla. 4th DCA 1987), the latter being a mandatory injunction case where we appropriately held that in specific performance situations, a perpetual injunction was inappropriate. We did properly cite Florida Jai Alai, Inc. v. Southern Catering Service…
  • Gonzalez v. Coconut Key Homeowners Assoc., Inc., 246 So. 3d 428 (Fla. 4th DCA 2018)

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